-finds National Assembly’s power limited in approval of estimates
Delivering his long-awaited final decision, acting Chief Justice Ian Chang yesterday declared that the National Assembly acted “unlawfully and unconstitutionally” by effecting cuts to the 2012 budget estimates, after finding that its power is limited to either giving or withholding approval.
According to Justice Chang, while the Assembly may approve or not approve the Finance Minister’s estimates of expenditure, it has no power to change them by either reducing or increasing them. “The power to amend may involve the power to approve. But a power to approve does not imply a power to amend,” he wrote in his decision on a challenge to the cuts that was brought to the court by Attorney General Anil Nandlall.
It is the executive Minister’s estimates and it is he who must amend them to obtain the Assembly’s approval so that the Cabinet may recommend or consent to the presentation of an Appropriation Bill to the Assembly for passing for the purpose of charging those estimates to the Consolidated Fund, Justice Chang found. It appears
that only the Constitution itself and not even Parliament, much less the Assembly, he added, can authorise the Assembly to amend the estimates of the executive minister. And despite arguments to the contrary, he said the Standing Orders, being mere internal regulatory rules, cannot do so.
Justice Chang said the very fact that the Constitution has provided for the approval and, by implication, non-approval of the minister’s estimates of expenditure by the Assembly in Article 218, leads to the “irresistible conclusion” that approval cannot be interpreted to mean “to amend.” It would not make sense for the Constitution to require the Assembly to approve that which it has itself amended, he explained.
“In the circumstances, the court sees it fit to declare that the National Assembly through the committee of supply has acted unlawfully and unconstitutionally in purporting to reduce or cut the Estimates of Expenditure of the Minister of Finance for the financial year 2012,” he wrote.
“The court sees it fit to further declare that the power of the National Assembly is limited to giving or withholding its approval for the Minister’s Estimates when those estimates are laid before the Assembly for its approval under Article 218 of the Constitution,” Justice Chang added.
In June of 2012, Nandlall moved to the court to seek reliefs after opposition parties APNU and the AFC, using their combined one-seat majority in the National Assembly, moved to reduce the estimates by $21B. Similar cuts were effected last year and Justice Chang did note the repetition of the questioned action by the National Assembly subsequent to the 2012 financial year.
Among issues also addressed in the ruling is the question of the court’s jurisdiction over the Assembly. Justice Chang acknowledged that as “a matter of generality,” the court has no supervisory jurisdiction over the Assembly but he added that it is “constitutional heresy” to state that the court has no supervisory jurisdiction at all over the Assembly.
“In respect of unconstitutional or unlawful conduct on the part of the Assembly, it is trite law that the Court does have a supervisory jurisdiction over the Assembly,” he said, while observing it is in the exercise of its supervisory jurisdiction over Parliament itself that the court strikes down legislation on the ground of unconstitutionality. “While the court would not generally interfere in the internal operations of the Assembly, the court in the exercise of its supervisory jurisdiction would declare conduct of the Assembly unconstitutional or unlawful. In relation to Parliament and the Assembly, its supervisory jurisdiction is necessarily limited but is certainly not non-existent,” he added.
While Speaker Raphael Trotman, Opposition Leader David Granger and Finance Minister Dr Ashni Singh were named as defendants in the action filed by Nandlall, Justice Chang struck out Granger and Singh as defendants and dismissed the case against them. He said that Nandlall’s cause of action against them was based on words spoken by them before the Assembly or for motions brought by them therein but Article 172 (2) of the Constitution procedurally debarred the institution of curial proceedings (criminal or civil) against them for words spoken by them before the Assembly or for moving motions therein, among other things.
Political expediency can’t justify unconstitutionality
Nandlall had sought declarations from the court that the reductions were an abrogation of the doctrine of separation of powers as well as unconstitutional and unlawful; an order vacating and/or setting aside the reductions; and an interim order to allow Singh to make advances from the Consolidated Fund to restore the original allocations for the agencies affected by the cuts.
The final decision is largely in line with a preliminary ruling that Justice Chang delivered in 2012, where he found that the act of the cutting or reducing the estimates was outside the National Assembly’s constitutional remit. Nonetheless, he had said that the 2012 Appropriation Bill that was subsequently passed by the National Assembly and to which the President assented was not unconstitutional.
He had also said he was unable to order interim relief relating to the cuts since the Constitution and Parliament have reposed power in the Minister and not in the court to take remedial action against the consequences of those cuts or reduction. Minister Singh has since justified expenditure from the Contingencies Fund based on this finding despite challenges by opposition MPs.
In his decision yesterday, Justice Chang said that the power of the Assembly to approve or not to approve the minister’s estimates simply means that the Assembly is conferred with a “gate keeping” function by the Constitution and does not imply or involve a power to amend or to adjust the estimates presented by the executive minister.
“If it needs any correction or amendment for approval, it is the Minister who must do the correction or amendment to obtain the Assembly’s approval,” he said.
In a scenario where the Assembly took the view that an allocation would be insufficient to implement a project and the issue becomes not that of “cutting” but of increasing the estimates, he noted, it would be the minister who would be required to raise the estimates and not the National Assembly.
Under Article 218 of the Constitution, the Finance Minister or any other minister designated by the president is responsible for preparation and the laying of estimates of the revenues and expenditure for each financial year before the National Assembly before or within 90 days after the commencement of that financial year.
In his ruling, Justice Chang noted that if the Assembly were permitted to cut the Minister’s estimates, the estimates, when cut, would necessarily become the estimates as fixed and determined by the Assembly and would cease being the Minister’s estimates.
“If the Assembly has the power to cut the estimate in relation to one line item, then, as a matter of principle, it would have the power to cut each and every line item. Assuming that the estimates in relation to each and every line item were to be cut to $1, it can hardly be said that the estimates as cut remain the estimates of the Minister,” he explained.
“Any power in the Assembly to cut the Minister’s estimates would necessarily mean that the requirement of approval by the Assembly in Article 218 would become otiose and unnecessary and in effect a nullification of that constitutional requirement since the Assembly cannot sensibly be required to approve an amount which itself has fixed by reduction or cut.
The amendment of the estimates by reduction would be a fait accompli by the Assembly and any approval would be meaningless. Finality does not invite any subsequent approval,” he added.
Justice Chang also argued that a power in the Assembly to cut would necessarily mean that there would be no room for the minister to make any amendment to his estimates to meet the concerns of the Assembly expressed in the course of the budget debates or in the Committee of Supply. In such circumstances, he considered, the minister’s power to amend his own estimates to meet the concerns of the Assembly would become non-existent as a feature of the budgetary proceedings.
“Clearly, it is the minister’s estimates or amended estimates which require the approval of the Assembly under Article 218 and this constitutional requirement is necessarily inconsistent with the existence of power in the Assembly to cut and thereby to fix the estimates of expenditure…,” he said.
Article 171(2) (a) (ii) of the Constitution stipulates that the National Assembly shall not proceed on any bill or amendment bill that would result in any charge on the Consolidated Fund or any other public fund or that would alter any such charge otherwise than by reducing it.
According to Justice Chang, it is clear from this constitutional provision that the Assembly cannot proceed on any bill for imposing any charge upon the Consolidated Fund or any public fund without the recommendation or consent of the Cabinet. As a result, he concluded that the National Assembly can propose amendments and not itself make amendments to the minister’s estimates. “If the Assembly has already amended the estimates, then this obviates the necessity for its subsequent approval and the requirement for approval in Article 218 is effectively negatived,” he pointed out.
He doubted that the framers of the Constitution could have contemplated that the Cabinet would recommend or give its consent to the tabling of an Appropriation Bill which is not made up of the estimates of the executive government—but rather estimates of the Assembly reduced in the face of objections by the executive government.
“Otherwise, Cabinet would become the approver of the Assembly’s estimates rather than vice versa. Under the Constitution, it is clear that it is the Assembly which has the power of oversight of the Government’s estimates and not vice versa. The Constitution does not at all allow for such a reversal of roles. The Government may be forced by the non-approval of the Assembly to amend its estimates as a matter of political practicality. But, as a matter of constitutional legality, the Assembly cannot itself proceed to amend the Government’s estimates. It cannot be the fixer and approver at the same time. Even the demands of political expediency cannot justify unconstitutionality,” he found.
Fettering the Assembly’s work
Justice Chang also addressed the argument that a Standing Order of the Assembly had permitted the Assembly to effect cuts to the estimates, saying that Standing Orders are not written law.
He noted that Section 9 of the Constitution did not convert pre-existing Standing Orders made by the Assembly from their status as procedural rules of self-regulation into procedural rules of law. Moreover, he said the fact that any Standing Order can be repealed or amended by the Assembly itself without the need for any repealing or amending legislative provision is a clear indication that it is not written law.
“Whatever their contents, the Speaker cannot interpret them and the Assembly cannot apply them in such a manner as to contravene the Constitution,” he pointed out. He further said that while it is not the function of the court to interpret Standing Orders, it is its function to act as guardian of the Constitution and to ensure that, whatever the contents of Standing Orders, their application does not involve a contravention of any provision of the Constitution or the law of the land.
“The court, acting as guardian of the Constitution, cannot be accused of seeking to fetter the work of the Assembly since it must be recognized that what fetters the Assembly is not the court but the Constitution itself or the law itself as interpreted by the court. It is not the court which fetters but the Constitution or the law as interpreted by the court,” he said, adding later that the court is concerned only with whether the application of the Standing Orders, however they may be interpreted by the Speaker, is offensive to the Constitution or the law of the land.
